Top 10 Employment Cases of 2017 Reviewed

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Three of the 10 most groundbreaking and relevant employment cases for HR professionals so far this year raise issues relevant to lesbian, gay, bisexual and transgender (LGBT) individuals. Three more center around Americans with Disabilities Act (ADA) claims. Speaking at the SHRM 2017 Annual Conference & Exposition, Louis Richard Lessig, an attorney with Brown & Connery in Westmont, N.J., discussed how these cases can serve as lessons—and warnings—to other employers.

LGBT Cases

In a case out of the 7th U.S. Circuit Court of Appeals (Hively v. Ivy Tech Community College), the reach of Title VII of the Civil Rights Act of 1964 was extended to prohibit sexual orientation discrimination. An associate professor at a community college who was openly lesbian did not get six jobs she applied for, and her part-time position was not renewed. She claimed she was discriminated against based on her sexual orientation. After hearing her case, the 7th Circuit became the first appeals court to rule that Title VII bars sexual orientation discrimination. Lessig said HR needs to tell managers about this case, as it could signal a developing trend.

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Another case (Ellingsworth v. Hartford Fire Ins. Co.) involved a supervisor who allegedly told an employee repeatedly that she dressed like a lesbian and had tattoos like a lesbian. The supervisor also would ask the employee to show her tattoos to co-workers and then ask them if they thought the tattoos made her look like a lesbian. Eventually the employee, who was heterosexual, went on leave and then resigned, alleging constructive discharge. The U.S. District Court for the Eastern District of Pennsylvania denied the motion to dismiss, holding that the plaintiff had stated a claim of gender stereotyping in violation of Title VII. The bullying behavior allegedly took place for a year but nobody did anything to stop it, Lessig said. If HR professionals are asked why money is needed for training, Lessig said, "This is why."

In
Blatt v. Cabela's Retail Inc., the U.S. District Court for the Eastern District of Pennsylvania denied dismissal of a claim that gender dysphoria—or gender identity disorder—was covered by the ADA. (The case was both an LGBT and ADA case.) Lessig called the ruling the "first of its kind in the country." The plaintiff in
Blatt was fired after six months on the job, allegedly because of gender dysphoria, which the plaintiff asserted was an ADA disability. A major life activity has to be substantially limited for an impairment to be a covered ADA disability. The major life activities in this case included reproduction and social and occupational functioning. This is one area where plaintiffs will try to push the envelope, Lessig predicted.

Other ADA Cases

Lessig also highlighted an ADA case brought by a customer service representative with depression and anxiety who had attendance problems. The court dismissed the claim (Williams v. AT&T Mobility Services, 6th Cir.), but Lessig said it serves as a reminder that if employers need employees to be at work, they should say that in job descriptions.

In another ADA claim, a school counselor with depression and anxiety presented a doctor's note asking to be able to wear sneakers. The employer repeatedly asked for a more informative doctor's note, but the worker never provided one. Meanwhile, she was called to nine meetings on her performance. After she was fired, she sued under the ADA, but her claim was dismissed because the note's vague references to "medical documentation" were not sufficient to demonstrate a disability under the ADA (Eubank v. Lockhart Independent School Dist., W.D. Texas). "It's critically important to stay after employees who make reasonable accommodation requests when they are on the way out the door," Lessig said.

Five More Notable Decisions

The five other cases Lessig mentioned involved:

A Family and Medical Leave Act (FMLA) retaliation claim that survived despite photos of a plaintiff at an amusement park and at a beach in the Caribbean Islands—taken when the employee was supposed to be recovering on FMLA leave. The employer also claimed that the employee was terminated for putting photos on Facebook that violated the company's social-media policy prohibiting postings that would harm co-workers' morale. But the employer couldn't show the policy was the reason for the firing, as the plaintiff maintained it wasn't mentioned during his discharge and there were contradictory reasons for his firing. (Jones v. Gulf Coast Healthcare, 11th Cir.).

An Equal Pay Act claim that advanced. A math consultant alleged that she was paid less than her male peers and the employer could not show that its process for paying salaries was lawful (Rizo v. Yovino, 9th Cir.).

A Fair Credit Reporting Act (FCRA) claim that was dismissed. A group of people alleged that the law was broken when they weren't sent a required notice. But they could show no injury since they all were hired (In re Michaels Stores, D. N.J.). Still, employers should check to make sure they are compliant with the FCRA, Lessig said.

An age discrimination claim brought by a fired licensed marijuana caregiver in a state where the sale of marijuana was lawful. The employee was fired for allegedly selling drugs on the employer's premises, though she denied this. The given reason for termination wasn't pretext for discrimination (Henry v. Outback Steakhouse of Fl., E.D. Mich.).

A Fair Labor Standards Act misclassification action claiming the plaintiffs should have been classified as employees. The court dismissed the claim, noting that the plaintiffs chose how and when they worked (Saleem v. Corporate Transportation Group, 2nd Cir.). But Lessig cautioned employers that if they bring in gig workers, they need to ensure they are not setting up an employment relationship.

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Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.